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England and Wales Court of Appeal (Civil Division) Decisions >>
F (Children), Re [2016] EWCA Civ 546 (09 June 2016)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/546.html
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[2016] EWCA Civ 546
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Neutral Citation Number: [2016] EWCA Civ 546 |
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Case No: B4/2016/0615 and 1201 |
IN THE
COURT
OF APPEAL (
CIVIL
DIVISION)
ON
APPEAL
FROM
THE HIGH
COURT
OF JUSTICE
FAMILY
DIVISION
Mr
Nicholas
Francis
QC (sitting as a
Deputy
Judge of the High
Court)
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
9 June 2016 |
B e
f
o r e :
SIR JAMES MUNBY PRESIDENT OF THE
FAMILY
DIVISION
and
LADY JUSTICE ARDEN
____________________
____________________
Mr Henry Setright QC and Ms Roshi Amiraftabi (instructed by
Dawson
Cornwell)
for
the appellant mother
Mr
Christopher
Hames QC (instructed by Goodman Ray)
for
the appellant L
Mr Teertha Gupta QC and Ms Mehvish
Chaudhry
(instructed by
Freemans)
for
the respondent
father
Hearing
date
: 26 May 2016
____________________
HTML VERSION OF JUDGMENT
____________________
Crown
Copyright
&
copy;
Sir James Munby President of the
Family
Division
:
- These are appeals, pursuant to permission given by Black LJ on 26
February
2016,
from
an order in Hague proceedings made by Mr Nicholas
Francis
QC (sitting as a
Deputy
Judge of the High
Court)
on 2
February
2016.
Background
- The
factual
background is shortly stated. The proceedings relate to three
children,
L, a girl born in April 2002,
F,
a girl born in July 2009 and G, their brother born in January 2012. The
children
and their parents are Hungarian. The parents' marriage broke
down
and there
were
proceedings in the Hungarian
court.
While
those proceedings
were
on
foot,
the mother brought the three
children
to this
country.
It is not
disputed
that this
was,
for
the purposes of the Hague
Convention,
an unlawful removal. The
father
started Hague proceedings in the
Family
Division
on 23 November 2015. The mother
defended
the proceedings on two grounds:
first,
under Article 13, that L and
F
objected to being returned to Hungary; secondly, under Article 13(b), that there
was
a grave risk that returning the
children
to Hungary
would
expose them to physical or psychological harm or otherwise place them in an intolerable situation.
- On 20 January 2016 there
was
a pre-trial review before Newton J. By then L had been interviewed by an experienced
CAFCASS
officer, Mr John Power. The mother submitted that L should be separately represented in the proceedings. Newton J refused her application. There
was
no appeal against his
decision.
- The matter
came
on
for
final
hearing before the
Deputy
Judge on 2
February
2016. By then, Mr Power had also interviewed
F.
As the
Deputy
Judge recorded in his judgment, both parents
were
present throughout the hearing, though neither gave oral evidence. The
father
had the assistance of an interpreter; the mother,
who
speaks good,
fluent
English, had no need of an interpreter. The
Deputy
Judge had the benefit of reading Mr Power's two reports,
dated
respectively 18 January 2016 and 1
February
2016, and of hearing his oral evidence, of
which
we
have been supplied
with
the Transcript. At the end of the hearing that afternoon the
Deputy
Judge
delivered
an ex tempore judgment. It runs to 33 numbered paragraphs, occupying nine pages of Transcript. The
Deputy
Judge rejected the
defence
based on Article 13(b). He
found
that L and
F
both objected to being returned to Hungary, but exercised his
discretion
to order their return. His order provided that the
children
were
to be returned to Hungary by 19
February
2016.
The appeals
- On 16
February
2016 the mother applied to the
Court
of Appeal
for
permission to appeal against the order of the
Deputy
Judge. A stay of his order
was
directed
by Black LJ on 18
February
2016. Subsequently, L applied to the
Court
of Appeal
for
permission to appeal against both the order of Newton J and the order of the
Deputy
Judge. The matter
came
back before Black LJ on 26
February
2016.
For
the reasons she explained in her judgment (Re
F
(
Children)
[2016] EWCA
Civ
354), Black LJ refused L permission to appeal against Newton J's order but gave both L and her mother permission to appeal against the
Deputy
Judge's order. In relation to L, Black LJ said this (Re
F,
para 35):
"
Whatever
the outcome … at least I hope she
will
feel
that she has had her
full
say in the process … she needs to be a
full
participating party
with
representation."
The
father
subsequently
filed
a respondent's notice on 24 March 2016.
- The appeals
came
on before us on 26 May 2016. The mother
was
represented by Mr Henry Setright QC and Ms Roshi Amiraftabi, L by Mr
Christopher
Hames QC, and the
father
by Mr Teertha Gupta QC and Ms Mehvish
Chaudhry.
In addition to all the materials
which
had been before the
Deputy
Judge,
we
had two statements by L's litigation
friend,
JB,
dated
18 and 25
February
2016 respectively, setting out L's evidence in some
detail,
and a statement
from
the
father
dated
17 May 2016 exhibiting a bundle of updating material in relation to the Hungarian
court
proceedings. There
was
no objection to the introduction of L's evidence and
we
made an order permitting both L's evidence and the
father's
updating evidence and material to be
filed.
At the end of the hearing
we
reserved judgment.
The judgment
- Given the
way
in
which
the arguments before us
were
deployed,
it is
convenient,
before I proceed any
further,
to go in some
detail
to the
Deputy
Judge's judgment.
First
(paragraphs 1-16), he set out the
facts
and the parents' allegations. In the
course
of this, the
Deputy
Judge said this (paragraph 9):
"I should say that the
father,
in his evidence,
denies
all of the allegations that the mother makes and equally makes allegations against the mother. In the summary process in
which
I am engaged, I
can
do
no more than observe that these allegations and
counter-allegations
have been made."
- Having identified the two
defences
I have mentioned and recorded that the mother had engaged in the Hungarian proceedings and recognised that the Hungarian
courts
have authority to make
decisions
about the
children,
the
Deputy
Judge
continued
(paragraphs 17-18):
"17 … Therefore the question that I have to ask is
whether
those two
defences
… apply and, if either of them applies, then I have to exercise my
discretion
in the normal
way
to
decide
what
orders I should make.
18 It is
common
ground between the lawyers, and accepted that it is established authority now, that the
child
objections
defence
goes as
follows:
first,
it is necessary
for
the
defence
to show that the
child
objects to being returned; secondly, that the
child
(or
children)
has attained an age and
degree
of maturity at
which
it is appropriate to take account of his or her views. If each of those two limbs,
which
have been
called
the "gateway limbs", are established then I have a
discretion
as to
whether
or not to order a summary return."
- I must set out the next three paragraphs in
full:
"19 The evidence that I heard
from
Mr Power
was
clear
and unequivocal … it seems to me that the
conclusion
that I have to reach as a result of Mr Power's evidence is that L
does
object to being returned to Hungary. I also have to
conclude
that she has attained an age and
degree
of maturity at
which
it is appropriate
for
me to take account of her views. Of
course
those
findings
are not
determinative
of the
decision
that I have to make this afternoon. But to summarise just a
few
of the points that Mr Power
dealt
with
in his evidence, he said that there
was
no
doubt
that L really likes her life in England and
wants
to remain here
with
her mother, her sister and her brother. He admitted, and accepted under
cross-examination,
that it probably
was
true that she had been exposed to
conversations
with
her sister and mother. Mr Power accepted that there may be a
degree
of emotional encouragement, however subtle, that seeks to support the opinion that has been given. He also accepted that
children
tend to prefer the education system here to that in East Europe. He said that the
children
did
not go into a great
deal
of
detail
about the life in Hungary. The real
focus
was
the life in this
country.
He observed that L
was
able to say that she
found
that the pound
went
further
here than the
forint
did
in Hungary. Having heard
from
Mr Power, it is
clear
to me that there are many
ways
in
which
L took the view that her life
was
better here than in Hungary and objected to being returned to Hungary.
20 So
far
as
F
is
concerned,
I am acutely aware of her young age, being only about 6½ years old. I recognise
what
the
Court
of Appeal said in Re M about taking into account the
wishes
of younger
children
and how the trend is moving towards the ever increasing taking into account of such views.[1] I accept
without
hesitation
what
Mr Power told me about L, both in terms of her objections to being returned to Hungary and in terms of her ability to understand
what
it
was
that she
was
saying. So
far
as
F
is
concerned,
it is much more balanced, taking into account how young she is.
F
had had some health
difficulties
in Hungary
which
no longer subsist.
For
example, she had suffered
from
constipation
which
was
thought to be the
consequence
of emotional
difficulties.
On balance I
find
that the threshold gateway is triggered insofar as
F
is
concerned
as
well
as L, and that there is an objection
which
could
amount to a
defence
subject to, as I have said, the exercise of my
discretion.
21 In respect of G,
who
is only 4, I
do
not think it is seriously
contended
by anybody that the
defence
could
arise. Accordingly, I
do
have to exercise my
discretion
in respect of both L and
F."
- In paragraph 22, the
Deputy
Judge quoted
what
Baroness Hale had said in In re M (
Children)
(Abduction: Rights of
Custody)
[2007] UKHL 55, [2008] 1 AC 1288, para 42, referring to and indicating the "general policy
considerations
which
may be
weighed
against the interests of the
child
in the individual
case."
In paragraph 24, the
Deputy
Judge
went
on to quote a
further
passage
from
Baroness Hale's speech (Re M, para 46):
"These
days,
and especially in the light of article 12 of the United Nations
Convention
on the Rights of the
Child,
courts
increasingly
consider
it appropriate to take account of a
child's
views. Taking account
does
not mean that those views are always
determinative
or even presumptively so. Once the
discretion
comes
into play, the
court
may have to
consider
the nature and strength of the
child's
objections, the extent to
which
they are "authentically her own" or the product of the influence of the abducting parent, the extent to
which
they
coincide
or are at odds
with
other
considerations
which
are relevant to her
welfare,
as
well
as the general
Convention
considerations
referred to earlier. The older the
child,
the greater the
weight
that her objections are likely to
carry.
But that is
far
from
saying that the
child's
objections should only prevail in the most exceptional
circumstances."
- In paragraphs 25-30, the
Deputy
Judge turned to
deal
with
the Article 13(b)
defence
and to explain
why
the mother had not made it out. In the
course
of this, the
Deputy
Judge summarised the mother's
case
as
follows
(paragraph 28):
"I have been referred to the mother's statement and also to oral evidence
which
the mother gave to the Hungarian
court
…
which
details
the
circumstances
pertaining at the time of their removal
from
Hungary
which
placed them at risk of emotional and physical harm. The issues
which
the mother gave evidence about in those various
ways
included
what
she referred to as the
father's
financial
abandonment of her and the
children
following
the parties' separation; the
father's
controlling
and emotionally abusive behaviour towards the mother and his lack of practical support
for
the
children
following
separation; the
consequent
impact on the mother's emotional and psychological health; the
consequent
impact on the
children's
emotional and psychological health."
- Paragraphs 31-32 are
central
to the issues
which
have been
debated
before us:
"31 My
discretion
therefore arises out of L's
wishes
being made out in the
way
that I have set out and
F's
being made out, but
with
the
caution
that I have referred to already that I must exercise by account of her age. Having regard to the protection,
which
I am satisfied that the Hungarian
court
can
offer, to the
civilised
and proper
way
in
which
it appears so
far
to have
dealt
with
the issues relating to the
contact
and residence of the
children;
having regard to the
fact
that the process there is
well
advanced,
with
the reports having been ordered; having regard to the
father's
undertakings and the sophisticated mechanisms that are available in Hungary
for
the making of
financial
claims,
and having regard to the admission by the mother of the abduction and the payment of the rent in advance, and the other matters to
which
I have referred, in the exercise of my
discretion,
painful as I
find
it, I am satisfied that I should make the order
for
the summary return of the
children
to Hungary. I accept all of the
father's
undertakings that have been offered and
carefully
crafted
and agreed by
counsel
in advance.
When
I say "agreed" I mean subject obviously to the judgment that I
was
going to give.
32 I recognise that the order that I am making
will
be painful to the mother; that she is making
for
herself a new life here in England, and that it
will
be painfully particularly to L. But I also recognise that this is a summary process
where
my hands are to some extent already tied and I am
completely
satisfied that, having regard to the principles set out by the Supreme
Court
and the House of Lords, in the
cases
to
which
I have referred, that the proper order is
for
the return of the
children
to Hungary."
The grounds of appeal
- The mother and L make
common
ground in relation to two grounds of appeal.
First,
Mr Setright and Mr Hames say that the
Deputy
Judge's use (judgment, paragraph 32) of the phrase "this is a summary process
where
my hands are to some extent already tied" shows that he misdirected himself and improperly
fettered
a
discretion
which,
as Baroness Hale had made
clear
in in In re M (
Children)
(Abduction: Rights of
Custody)
[2007] UKHL 55, [2008] 1 AC 1288, para 43,
was
"at large." His hands
were
not tied, he had a
wide
discretion;
the misdirection meant, they submit, that the
Deputy
Judge
failed
to
conduct
a proper
discretionary
exercise at all.
- Secondly, they point to the
fact
that in the previous paragraph (paragraph 31) the
Deputy
Judge had referred to only three specific
factors
– in summary,
first,
"the protection,
which
I am satisfied that the Hungarian
court
can
offer," secondly, "the
father's
undertakings," and, thirdly, "the admission by the mother of the abduction and the payment of the rent in advance" – and had, they submit,
failed
to take into account a number of other highly relevant
factors,
thereby basing the erroneous exercise of his
discretion
on an inadequate and unduly narrow range of
considerations.
- Mr Setright identifies no
fewer
than eight
factors
to
which,
he says, the
Deputy
Judge had no, or at best inadequate, regard: (i) the reasons
for
L's and
F's
objections; (ii) the strength of their objections; (iii) the
family's
circumstances
and home environment immediately prior to their removal to England and the impact of those
circumstances
on the
well-being
of the mother and the
children
and their views; (iv) the extent to
which
the
children's
views might have been influenced by the mother; (v) the likelihood that the
children
would
be returning to the same
circumstances
and environment
which
contributed,
significantly in the
case
of L, to their objections to a return and
whether
in such
circumstances
a summary return
was
contrary
to their interests; (vi) the
fact
that L and
F
were
settled in England and viewed their lives to be better in this jurisdiction; (vii) the impact upon the mother, the
children's
primary
carer,
who
has achieved
financial
independence and emotional stability in this jurisdiction; and (viii) in the
case
of L, as a
child
rising 14 years and assessed by Mr Power as probably more mature than her age group, any
consideration
or explanation of the
factors
which
justified no
weight
being attached to her objections.
From
L's perspective, Mr Hames summarises the
Deputy
Judges omissions as being his
failure
to
consider:
(a) the nature and strength of L's objection; (b)
whether
those views are authentically her own; (
c)
whether
L's objection
coincides
or is at odds
with
her
welfare;
and (
d)
the impact a return
would
have on L's life;
- Mr Hames puts at the
forefront
of his submissions, however, the
complaint
that the process before the
Deputy
Judge
was
fundamentally
flawed
and unfair to L in that (i) she
was
deprived
of her right to participate in a
decision
which
fundamentally
affected her
future,
(ii) she
was
not able to
furnish
the
court
directly
with
"vital information and evidence"
which
the
Deputy
Judge needed to take into account in exercising his
discretion
– as Mr Hames put it, this
damaged
the
flow
of information to the judge,
who
was
therefore not able to take account of all the relevant evidence, and (iii) the
Deputy
Judge
failed
to meet
with
L
despite
Mr Power having reported that she
wished
to meet the trial judge. Mr Power's evidence, he submits,
was
merely a snapshot of L's views;
what
he
calls
the
contextual
detail
was
not before the judge.
- Mr Hames emphasises that L no longer
challenges
the
decision
not to join her to the proceedings. He seeks merely to
demonstrate
that her exclusion meant that the process in
which
the
Deputy
Judge's
decision
was
taken
was
fundamentally
flawed.
Mr Gupta submits that, having been refused permission to appeal against Newton J's order, this line of argument is no longer open to L. The appeal is not, he says, a backdoor to revisiting Black LJ's
decision
not to give permission.
- Be all that it may, Mr Hames accepts that all the relevant material is now before us. So it is to this that I turn. Given that L has been given permission to appeal, and given that
we
have admitted all the materials upon
which
she
wishes
to rely, the other aspects of her appeal in my judgment
fall
away.
Whatever
defects
in the procedure there may have been (and even assuming in her
favour
that it is still open to L to raise them), they
cannot
in my judgment give her any additional basis of
complaint
if the
challenge,
based on the
facts,
which
is before us
fails.
- Mr Hames summarises the key points
which
emerge
from
L's evidence, as articulated by JB in her statements, as being: (a) how happy and integrated L is
with
her life in England, particularly in her school in England: she had
chosen
her GSCE options; she has immersed herself in school activities
from
choir
to athletics,
from
drama
to gymnastics; she has many school
friends;
(b) how extensive and supportive her social network has been outside school: she attends a local
church;
(
c)
how L had
changed
from
a quiet timid girl
when
living in Hungary to a happy girl in her English school; (
d)
how
deeply
unhappy and stressed L
was
in Hungary: she
felt
intimidated by her
father
shouting at her mother; she
cried
a lot; she always
felt
stressed and tired; she lost her appetite and suffered
weight
loss; (e)
what
a struggle life had been in Hungary after the
father
left: L's mother
did
not have the
financial
support to meet the
family's
basic
costs
of living; she struggled to provide
financially
for
the
family
and meet all of the
care
needs of the 3
children;
the
family
was
forced
to move; L
fears
the
family
would
rapidly
descend
back into poverty should there be a return to Hungary ordered; (
f)
how a return to the Hungarian education system
would
not meet L's educational aspirations, particularly
when
compared
to her English school; (g) how L is aware that
while
in theory the Hungarian
court
could
give permission
for
the
family
to return, the
delays
inherent in the Hungarian system,
coupled
with
her
father's
abilities as a lawyer, mean that no
decision
would
be made
within
a reasonable and
child-appropriate
timescale; a return now
would
mean the
family
is trapped in Hungary in the same old stressful
circumstances
as before but this time having to
cope
with
the aggravation of prolonged litigation; (h) how her
father
has effectively rejected L and her siblings:
during
contact
visits he
worked
or slept; he arranged no
family
activities
for
his
children;
there
was
no
warmth
or love in his home; he never helped
with
their homework; L
feels
thoroughly let
down
by him; (i) L had engaged in two
face
time
discussions
with
her parents to attempt to reach agreement; she proposed professional mediation to assist her parents and her
find
consensus;
(j) any suggestion that her
father
puts before the
court
that L has been brainwashed by her mother is both untrue and unfair: he is guilty of not listening to her and not understanding her views,
wishes
and
feelings;
(k) Mr Power
was
wrong
to accuse her of not telling the truth about the mother's male
friend,
P: at the time of her meeting
with
Mr Power, P
was
not her mother's boyfriend; (l) since being informed of the judge's
decision,
L
cries
all of the time, has had trouble sleeping and eating and has been unable to
concentrate
at school; a return
for
her
would
be a 'nightmare'.
- Mr Hames emphasises that this is merely a summary of JB's evidence and urges us to bear in mind, as I
do,
everything she has said,
for
example in paragraphs 20 and 24 of her second statement,
where
she refers to L as being "terrified" of the prospect of being returned to Hungary and of talking "in a rather panicked
way."
Discussion
- Like any judgment, the judgment of the
Deputy
Judge has to be read as a
whole,
and having regard to its
context
and structure. The task
facing
a judge is not to pass an examination, or to prepare a
detailed
legal or
factual
analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand
why
they have
won
or lost; and to provide sufficient
detail
and analysis to enable an appellate
court
to
decide
whether
or not the judgment is sustainable. The judge need not slavishly restate either the
facts,
the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (
Fam),
[2016] 1
FLR
228, para 29, there is no need
for
the judge to "incant mechanically" passages
from
the authorities, the evidence or the submissions, as if he
were
"a pilot going through the pre-
flight
checklist."
- The task of this
court
is to
decide
the appeal applying the principles set out in the
classic
speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1
WLR
1360. I
confine
myself to one short passage (at 1372):
"The exigencies of
daily
court
room life are such that reasons
for
judgment
will
always be
capable
of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this
case
… These reasons should be read on the assumption that, unless he has
demonstrated
the
contrary,
the judge knew how he should perform his
functions
and
which
matters he should take into account. This is particularly true
when
the matters in question are so
well
known as those specified in section 25(2) [of the Matrimonial
Causes
Act 1973]. An appellate
court
should resist the temptation to subvert the principle that they should not substitute their own
discretion
for
that of the judge by a narrow textual analysis
which
enables them to
claim
that he misdirected himself."
It is not the
function
of an appellate
court
to strive by tortuous mental gymnastics to
find
error in the
decision
under review
when
in truth there has been none. The
concern
of the
court
ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the
court
must be
wary
of becoming embroiled in "narrow textual analysis".
- In the present
case
it is important also to bear in mind that the
Deputy
Judge
was
giving an ex tempore judgment at the end of a hearing
which
had occupied only one
day,
and in the presence of the parties
who
had been present throughout the hearing and
who
had heard both Mr Power's evidence and
counsel's
submissions – all of
which
must have been
fresh
in their minds as they listened to the judgment being
delivered.
- I
consider
first
the
complaint
that the
Deputy
Judge misdirected himself in law. In my judgment, there is no substance in this
complaint.
- It is necessary, as Mr Gupta submitted, to have regard to the structure of the
Deputy
Judge's judgment. The
core
of his reasoning in relation to the exercise of his
discretion
is undoubtedly to be
found
in paragraph 31
which,
it is to be noted,
culminates
in his
conclusion
that "I should make the order
for
the summary return of the
children
to Hungary." Paragraph 32, Mr Gupta suggests, has the tone of a postscript, in
which
the
Deputy
Judge is expressing,
for
the benefit of the mother, his regret at having had to make a tough
decision.
But, says Mr Gupta, and I agree, the
Deputy
Judge is not saying he is
constrained
in the manner suggested by Mr Setright and Mr Hames. The
Deputy
Judge's reference to a "summary process", read in
context,
is plainly to the Hague process, taken as a
whole,
and not to the ambit of his
discretion.
It echoes his earlier reference (judgment, paragraph 9) to "the summary process in
which
I am engaged"
which,
in
context,
has nothing
whatever
to
do
with
the ambit of his
discretion.
Moreover, and in any event, the phrase
when
used by the
Deputy
Judge in paragraph 32
cannot
have been intended by him in the
way
in
which
Mr Setright and Mr Hames
would
have us read it,
for
why,
on that
footing,
should he have extended his
discussion
of
discretion
in paragraph 31 as
widely
as, in my judgment, he plainly
did.
- I turn to the attack on the
Deputy
Judge's exercise of
discretion.
In my judgment it
founders
because of the excessively narrow reading of paragraph 31 to
which
both Mr Setright and Mr Hames
would
have us subscribe. Their approach, stripped
down
to essentials, is to treat as the only
factors
which
the
Deputy
Judge took into account those to
which
I have referred in paragraph 14 above. But this,
with
all respect, involves a misreading of paragraph 31; in particular, it ignores
what,
in my judgment, is the importance, in understanding the
Deputy
Judge's reasoning, both of the opening
words
of paragraph 31 ("My
discretion
therefore arises out of L's
wishes
being made out in the
way
that I have set out and
F's
being made out …") and of the phrase
which
appears at the end of his list of specific
factors
("and the other matters to
which
I have referred"). Read in
context,
these are plainly references back to
what
the
Deputy
Judge had earlier set out in the passages (judgment, paragraphs 19-21, 28) set out in paragraphs 9 and 11 above. It
follows,
in my judgment, that, in evaluating
whether
or not there is substance in their attack on the
Deputy
Judge's exercise of
discretion,
the
complaints
articulated by Mr Setright and Mr Hames have to be
considered
in the
context
of the
Deputy
Judge's judgment read as a
whole
and, in particular, in the
context
of paragraphs 19-21, 28, and 31-32 read as a
whole.
- In my judgment, an analysis of the
Deputy
Judge's judgment read as a
whole,
and in particular if paragraphs 31-32 are read, as they must be, in the
context
of paragraphs 19-21 and 28,
demonstrates
that Mr Setright's
complaints
simply
do
not stand up. Put shortly, every one of the points to
which
Mr Setright
draws
attention, as I have summarised them in paragraph 15 above, is identified by the
Deputy
Judge and appropriately taken into account by him, if not in paragraphs 31-32 then in paragraphs 19-21 and 28.
- Inevitably, this exercise has lured us into the kind of "narrow textual analysis" against
which
Lord Hoffmann
warned;
but, paradoxically, the more
we
embarked
with
Mr Setright on this analysis the more it
demonstrated,
in my judgment, that there
was,
at the end of the
day,
really nothing in his argument. Remorseless analysis of each of Mr Setright's eight points is not
called
for,
but I
can
illustrate my
conclusion
by making the
following
non-exhaustive points.
- The reasons
for
L's and
F's
objections
were
clearly
summarised by the
Deputy
Judge (judgment, paragraphs 19 and 20). Mr Setright sought to bolster his argument as to the strength of their objections by taking us to passages in Mr Power's evidence
where
he said L and
F
"really
want
to remain in the UK", and that
F
"really likes her life here" and is "really
worried"
about a return. But this is the very language
which
the
Deputy
Judge used
when
he said (paragraph 19) that "L really likes her life in England." And the
Deputy
Judge recognised (paragraph 32) that the order he
was
making "
will
be particularly painful to L." The
Deputy
Judge
dealt
with
the
family's
circumstances
in Hungary (paragraph 28). He
dealt
with
the issue of the mother's influence on the
children's
views (paragraph 19) and accepted Mr Power's analysis. Mr Setright sought to bolster his argument on this point by taking us to a passage in Mr Power's evidence
where,
I note, Mr Power referred to the mother's "subtle emotional encouragement." But again, this is evidence that the
Deputy
Judge had very much in mind, as
demonstrated
by his reference (paragraph 19) to "a
degree
of emotional encouragement, however subtle." The
Deputy
Judge addressed (paragraph 31) the
concern
that the
children
would
be returned to the same
circumstances
in Hungary and explored the protective measures (both judicial and by
way
of the
father's
undertakings) that
would
be in place. He addressed the
fact
that, as Mr Setright put it, the
children
were
settled in England and thought their lives to be better in this jurisdiction, again a phrase
which
he picked up (paragraph 19)
when
he referred to L taking the view that "her life
was
better here than in Hungary." He addressed the impact on the mother, recognising (paragraph 32) it
would
be "painful to the mother [
who]
is making
for
herself a new life in England." I should add that there is simply no basis
for
the assertion that the
Deputy
Judge attached "no
weight"
to L's objections. He
dealt
with
them in some
detail
and gave them appropriate
weight
but, as he
was
entitled to, refused to treat them as
determinative.
- I have set out in paragraph 20 above the matters relied on by Mr Hames. True it is that the new material adds a
certain
amount of '
colour'
and additional
detail
(
for
example, Mr Hames' points (b), (
c)
and (h)) but the
fundamentals
– Mr Hames' points (a), (
d),
(e), (
f),
(g) and (j) –
were
all put before the
Deputy
Judge by Mr Power and, as his judgment
demonstrates,
they
were
all matters that the
Deputy
Judge had very much in mind. I
do
not see
where
his point (k) takes Mr Hames,
for
it is plain that the
Deputy
Judge accepted Mr Power's evidence that L objected (and as to
why
that
was)
and there is no hint of the
Deputy
Judge's analysis having been tainted by any suggestion that L had not been truthful. Mr Hames' points (i) and (l) are in a sense new but I
do
not see
where
they take him. Neither, in my judgment,
whether
taken on their own or in
conjunction
with
everything else, provides any reason
for
challenging
the
conclusions
to
which
the
Deputy
Judge
came
or any reason
why
the order he made should not be implemented.
- In my judgment, no error of
fact
has been identified in the judgment of the
Deputy
Judge. Nor has any error of law or principle. The
Deputy
Judge took into account all the relevant
factors
and attributed to them, as he
was
entitled to, such
weight
as he thought appropriate in the
circumstances.
He
was
entitled to
decide
as he
did
and
for
the reasons he gave. This
court
is not entitled to interfere
with
his
decision
nor, even in the light of the additional material
which
is now before us,
with
the order he made.
- Both appeals must be
dismissed.
There is, therefore, no need to
consider
the 'sibling separation' issue that might otherwise have arisen in relation to G's position (as to
which
see In re M and others (
Children)
(Abduction:
Child's
Objections) [2015] EWCA
Civ
26, [2016]
Fam
1).
Decision
- The appeals
will
be
dismissed.
The
father
has proffered the
following
undertakings, in addition to those he gave the
Deputy
Judge, to address the
fact
that there have, since the
date
of the
Deputy
Judge's order, been
further
developments
in the Hungarian
court:
"1 On the understanding that the mother
will
allow
direct
contact
between the
children
and
father
in Hungary and that she
will
fully
co-operate
in ensuring that a
final
judgment is obtained as soon as possible in Hungary, the
father
undertakes not to enforce the Hungarian orders
for
interim
custody
pending said
final
judgment.
2 The
father
undertakes to lodge a
consent
order in Hungary staying the interim
custody
orders until
final
judgment."
Those undertakings
will
be included in our order.
Process and procedure
- In
deference
to his
careful
submissions I should make some reference to the authorities to
which
Mr Hames referred us in relation to the question of
whether
L
was
given a proper opportunity to participate in the proceedings before the
Deputy
Judge. Because, as I have said, nothing ultimately turns on any of this, I
can
take matters
fairly
shortly, in large part merely identifying the relevant authorities
without
any elaborate
citation.
- The starting point is, of
course,
Article 12(2) of the United Nations
Convention
on the Rights of the
Child
and Article 11(2) of
Council
Regulation (EC) No 2201/2003,
commonly
referred to as BIIA, both of
which
identify the obligation on the
court
to ensure that the
child
is given the opportunity to be "heard". Next I refer to the
well-known
passage in the
characteristically
prescient judgment of Thorpe LJ in Mabon v Mabon [2005] EWCA
Civ
634, [2005] 2
FLR
1011, paras 28-29,
culminating
in his observation that "judges have to be … alive to the risk of emotional harm that might arise
from
denying
the
child
knowledge of and participation in the
continuing
proceedings." Thorpe LJ returned to the same theme in Re G (Abduction:
Children's
Objections) [2010] EWCA
Civ
1232, [2011] 1
FLR
1645, para 15, a
case
where
(see paras 20-21) Thorpe and Smith LJJ themselves met the
child,
a 13-year old girl, and again in Re J (Abduction:
Children's
Objections) [2011] EWCA
Civ
1448, [2012] 1
FLR
457, paras 33, 42.
Well
before then, in In re
D
(A
Child)
(Abduction: Rights of
Custody)
[2006] UKHL 51, [2007] 1 AC 619, paras 57-61, the House of Lords had indicated that merely enabling the
child
to meet the judge might not be sufficient. Having observed (para 59) that "
children
should be heard
far
more
frequently
in Hague
Convention
cases
than has been the practice hitherto. The only question is how this should be
done",
Baroness Hale of Richmond
continued
(para 60):
"There are three possible
ways
of
doing
this. They range
from
full
scale legal representation of the
child,
through the report of an independent
CAFCASS
officer or other professional, to a
face-to-face
interview
with
the judge."
I add another possibility, the
child
giving evidence but
without
being joined as a party: see
Cambra
v Jones (
Contempt
Proceedings:
Child
joined as party) [2014] EWHC 913 (
Fam),
[2015] 1
FLR
263, paras 10, 14.
- The Supreme
Court
returned to the topic, this time in the
context
of
care
proceedings, in In re
W
(
Children)
(
Family
Proceedings: Evidence) [2010] UKSC 12, [2010] 1
WLR
701, holding that there is no longer a presumption, or even a starting point, against
children
giving evidence in
family
proceedings. In In re LC (
Children)
(Reunite International
Child
Abduction
Centre
intervening) [2014] UKSC 1, [2014] AC 1038, the Supreme
Court
considered
whether
a 13-year old girl, T, should be joined as a party to Hague proceedings. Reversing this
court,
it held that she should.
- Next, I should refer to In re M and others (
Children)
(Abduction:
Child's
Objections) [2015] EWCA
Civ
26, [2016]
Fam
1, para 155, and, more particularly, to In re
D
(A
Child)
(International Recognition) [2016] EWCA
Civ
12, paras 41, 44, 47, 48,
where
the obligation of the
court
to ensure that the
child
is given the opportunity to be heard and "the right of the
child
to participate in the process that is about him or her"
were
said to be
fundamental
principles of universal application, "reflected in our legislation, our rules and practice
directions
and our jurisprudence" and
where
it
was
said that "the theme of the
case
law is an emphasis on the 'right' of participation of those 'affected' by proceedings."
Finally,
I refer to the very recent
decision
of this
court
in Re E A
Child)
[2016] EWCA
Civ
473, paras 46-48, 56-63, and, in particular, McFarlane LJ's acid observation (paras 48, 56) that Baroness Hale's judgment in In re
W
"
would
seem to have gone unheeded in the
five
or more years since it
was
given" and that "the previous
culture
and practice of the
family
courts
remains largely unchanged
with
the previous presumption against
children
giving evidence remaining intact."
- It is apparent that in relation to all these matters there has been a sea-
change
in attitudes over the last
decade
and more, even if on occasion practitioners and the
courts
have been and still are too slow to recognise the need
for
change
or to acknowledge the pace of
change.
Moreover, and I
wish
to emphasise this, the process of
change
continues
apace.
- In April 2010, "Guidelines
for
Judges Meeting
Children
who
are Subject to
Family
Proceedings"
were
issued by the
Family
Justice
Council
with
the approval of Sir Nicholas
Wall
P: [2010] 2
FLR
1872. In
December
2011, and
following
the
decision
of the Supreme
Court
in In re
W,
the
Family
Justice
Council
issued Guidelines, endorsed by Sir Nicholas
Wall
P, on "
Children
Giving Evidence in
Family
Proceedings:" [2012]
Fam
Law 79. More recently, the
whole
topic,
with
other related matters, has been
considered
by the
Children
and Vulnerable
Witnesses
Working
Group
which
I established under the
Chairmanship
of Russell and Hayden JJ in May 2014. Their interim report
was
published in July 2014 (see [2014]
Family
Law 1217) and the
final
report in
February
2015 (see [2015]
Family
Law 443). The
Family
Procedure Rules
Committee
is
currently
considering
the extent to
which,
given limited resources, the recommendations of the
Working
Group
can
be
fully
implemented.
Whatever
the outcome of that
discussion,
it is plain that the
further
changes
in our approach to these matters
which
are now
widely
acknowledged require to be implemented, and sooner rather than later.
- One thing is quite
clear:
that proper adherence to the principles laid
down
in In re
W
will
see ever increasing numbers of
children
giving evidence in
family
proceedings.
- One of the
drivers
for
this is the point
which
this
court
emphasised in In re KP (A
Child)
(Abduction: Rights of
Custody)
[2014] EWCA
Civ
554, [2014] 1
WLR
4326, paras 53, 56, namely, that a meeting between the
child
and the judge is "an opportunity: (i)
for
the judge to hear
what
the
child
may
wish
to say; and (ii)
for
the
child
to hear the judge explain the nature of the process;" that the "purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test
whatever
it is that the
child
wishes
to say;" and that if "the
child
volunteers evidence that
would
or might be relevant to the outcome of the proceedings, the judge should report back to the parties and
determine
whether,
and if so how, that evidence should be adduced." The
corollary
of this is that, quite apart
from
all the other
drivers
for
change,
there are likely
for
this reason alone to be more
cases
in
future
than hitherto
where
the
child
either gives evidence,
without
being joined as a party, or is joined as a party.
Lady Justice Arden :
- I agree.
Note 1 This is a reference to In re M and others (
Children)
(Abduction:
Child’s
Objections) [2015] EWCA
Civ
26, [2016]
Fam 1. [Back]
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URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/546.html